Apr. 30, 2013
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George Zimmerman / Gary W. Green, Orlando Sentinel, via AP

by Yamiche Alcindor, USA TODAY

by Yamiche Alcindor, USA TODAY

The man charged with murdering Trayvon Martin waived his right to a pre-trial self-defense immunity hearing during a Tuesday morning court appearance in Sanford, Fla.

Under oath, George Zimmerman told Circuit Judge Debra Nelson that he understood Florida's self-defense laws, that he had talked to his lawyers about the "stand-your-ground" statute, and that he decided not to have a pre-trial immunity hearing. The decision is seen by at least one expert as wise but risky.

Zimmerman will not be allowed to have such a hearing after a jury has made its decision but will also not have to testify twice. If he had chosen to have the immunity hearing, Zimmerman could have claimed self defense before a judge without a jury and if successful, could have been cleared of the murder charge.

"George wants this case before a jury of his peers -- that's where he's going to be acquitted," his attorney, Mark O'Mara, said after the hearing. He added that the case was a "straight forward self-defense case," and would not comment further on the defense's decision to forego the immunity hearing.

Zimmerman, a neighborhood watch volunteer, is facing a second-degree murder charge in the Feb. 26, 2012, shooting death of 17-year-old Trayvon Martin in a gated Sanford community. Trayvon's family argues the young black man was profiled, pursued and murdered. Zimmerman says he shot Trayvon in self defense after being attacked.

Zimmerman's trial is scheduled to begin June 10.

The decision by O'Mara to skip the pre-trial immunity hearing illustrates that winning that hearing may not have been easy for the defense and that it was not worth subjecting Zimmerman to cross-examination several months before trial, said Randy Reep, a criminal defense attorney in Jacksonville, Fla.

While Reep thinks Zimmerman's story has remained fairly consistent, the lawyer said the defense team would have been taking a risk by having Zimmerman tell his story before a judge and then, if not successful, a jury.

"O'Mara decided that the likelihood of winning the immunity hearing was outweighed by the danger of subjecting his client to the scrutiny of the state more than once," Reep said.

The immunity hearing would have also placed the burden of proof on the defense which may have had to call Zimmerman and other witnesses such as forensic experts to explain why Zimmerman feared for his life and used deadly force. By waiting until trial, O'Mara keeps his strategy and potential surprise evidence to himself and enters a legal arena where the burden is now on the prosecution since Zimmerman is presumed innocent at trial.

The strategy, however, is also risky and eliminates a path to acquittal for Zimmerman. "You never know when you put a case in the hands of 12 people," Reep said.

Still, O'Mara will have two opportunities during trial to ask for a "judgment of acquittal," where the judge can decide to acquit Zimmerman without the jury, Reep said. O'Mara can ask when the prosecution rests and when the defense rests but such acquittals don't happen often, Reep said.

If Zimmerman is convicted, he will have to appeal and will not be allowed to have an immunity hearing post-trial, Reep said.

At Tuesday's hearing, which lasted just under three hours, Judge Nelson ruled that Zimmerman's lawyers and state prosecutors will be allowed to learn the details of a wrongful-death settlement that could have paid $1 million or more to Trayvon's parents. However, the lawyers will have to keep the information confidential because the judge ruled only a redacted version of the settlement will be made public.

Benjamin Crump, an attorney for Trayvon Martin's parents, had filed a motion to keep the settlement sealed.

That issue only took a few minutes, as most of the hearing featured heated debates between prosecutors and defense lawyers on how information about evidence and witnesses has been delivered and potential delays caused by both sides.

In the end, the judge ruled that no violations or prejudices had occurred. However, she reserved judgment on a motion by Zimmerman's lawyers to make state prosecutors pay $4,555 in attorney's fees.

State prosecutors delayed depositions by five hours in March because they objected to them being videotaped, said O'Mara. The court later ruled that the witnesses -- including a friend of Trayvon who claims she was on the phone with him the night of the shooting -- could be videotaped, he said.

Assistant State Attorney Bernie de la Rionda maintained that no violations occurred and that his office is not liable for any attorney or videographer fees.

O'Mara had also claimed that the wording of one of de la Rionda's motion included false statements and misrepresentations and should be grounds for sanctioning him.

"His response was a horrific attack on me and my reputation," O'Mara said Tuesday in court.

In the March 28 motion, de la Rionda wrote O'Mara was "grandstanding" and "courts anything resembling a microphone or camera." He also added that O'Mara has made misrepresentations to the court, falsely asserted that Zimmerman was indigent, and has attacked several people including the family of Trayvon Martin, the family's attorney, and members of the news media.

Tuesday, Judge Nelson ruled that de la Rionda's motion could remain on the record and that O'Mara, within five days, can ask for certain parts of the motion to be redacted.

Nelson also ruled that state prosecutors must provide Zimmerman's attorneys with any new information they receive from Trayvon's cellphone. The ruling, currently, means prosecutors have nothing to provide because de la Rionda repeatedly told the judge he has provided O'Mara with all the information he has from the teen's cellphone.

The judge also ordered both sides to provide cleaned up or enhanced versions of a now critical 911 call where a person is heard screaming help before a gunshot the night Trayvon was killed. De la Rionda said he has not provided Tracy Martin or any member of Trayvon's family with enhanced versions of the 911 call though he said experts are working with the 911 call and may in the future have such versions. Zimmerman's defense also has experts who will work with the call.

Meanwhile, O'Mara was also allowed to add witnesses to the case but did not reveal publicly their names or what type of information they might provide.